Academic Freedom and Academic Anarchy
Stanley Fish’s most recent column in the New York Times (The Two Languages of Academic Freedom, Feb. 8, 2009) (http://fish.blogs.nytimes.com/2009/02/08/the-two-languages-of-academic-freedom/) is a good read. Fish tells the story of Denis Rancourt, a tenured full professor of physics at the University of Ottawa. Professor Rancourt is (or perhaps, was) a serious scientist, at least if his profile page at the university’s website (http://www.science.uottawa.ca/~dgr/) is accurate. Under the heading “Main Discoveries and Contributions,” he lists the solution to the Invar Problem of metal physics, the derivation of the fundamental quantification relation of X-ray diffraction, the reactive diagenetic Fe-oxyhydroxide phase in lake and marine sediments, the description of the phenomenon of superferromagnetism, and advances in Mossbauer sprectroscopy methodology and in layer silicate crystal chemistry and geosensors. He lists scientific publications with titles as opaque to a lawyer as the aforementioned ‘discoveries and contributions.’ He was tenured at the U of O in 1984 and far be it from this old lawyer to second guess his academic qualifications.
What gets this obscure Canadian professor a column in the New York Times is not his solution of the Invar Problem of metal physics, but rather the fact that he is a self-professed and practicing academic anarchist. His profile describes himself as “an activist, anarchist, and critical pedagogue.” If his anarchistic activism were limited to speaking and writing, he would be just another campus radical. What got him headlines and an official Recommendation of Termination of Employment from his $120,000 professorship was his pedagogical activity. For example:
• In 2005, without administration or general faculty approval, he experimented with using pass/fail grades in lieu of letter grades.
• He also changed course content from what appeared in official university publications, a process in which he sought and obtained the consent of only the students enrolled in the course, a practice he calls “academic squatting.”
• He created and maintained an anarchist blog sharply critical of the university administration and urging other professors to engage in “academic squatting.” (http://activistteacher.blogspot.com/)
• When the university revoked the enrollment of 10 year old twins who registered with their mother for one of Professor Rancourt’s courses, he supported the twins’ filing of a human rights complaint against the university claiming ageism.
On the first day of Professor Rancourt’s 4th year physics course in the second semester of 2008, he announced that each of the 24 senior and graduate-level students would receive a grade of A+. As the Globe and Mail newspaper reported, “it was not his job, as he explained later, to rank their skills for future employers, or train them to be “information transfer machines,” regurgitating facts on demand. Released from the pressure to ace the test, they would become “scientists,: not “automatons,” he reasoned.” (http://www.theglobeandmail.com/servlet/story/LAC.20090206.PROF06/TPStory/). This turned out to be the straw that broke the camel’s back. On December 10th, Rancourt was informed that he was being placed on academic suspension and recommended for dismissal from the faculty. He was also locked out of his laboratory and barred from campus. When he came to campus to host a meeting of his film society focused on social activism, he was arrested, handcuffed, and charged with trespassing.
It appears that the university authorities are in the process of deciding whether to dismiss Rancourt. The Canadian Association of University Teachers is independently reviewing whether Rancourt’s academic freedom has been or is about to be violated.
(For a more complete picture of Professor Rancourt and his relationship with his university, see the videos at YouTube when you search “Denis Rancourt.”)
Was the university justified in suspending Rancourt? In locking him out of the laboratory as well as the classroom? In banning him from campus? In having him arrested, cuffed, and criminally charged with trespass? In dismissing him (if dismissal occurs)? Stanley Fish has little sympathy for Rancourt. He wrote:
Last week we came to the section on academic freedom in my course on the law of higher education and I posed this hypothetical to the students: Suppose you were a member of a law firm or a mid-level executive in a corporation and you skipped meetings or came late, blew off assignments or altered them according to your whims, abused your colleagues and were habitually rude to clients. What would happen to you?
The chorus of answers cascaded immediately: “I’d be fired.” Now, I continued, imagine the same scenario and the same set of behaviors, but this time you’re a tenured professor in a North American university. What then?
I answered this one myself: “You’d be celebrated as a brave nonconformist, a tilter against orthodoxies, a pedagogical visionary and an exemplar of academic freedom.
He added that “some academics contrive to turn serial irresponsibility into a form of heroism under the banner of academic freedom . . .”
I confess to having some sympathy for Rancourt.
I have long had a deep hostility to the tyranny of academic grades. In my second year of law school teaching, I made a written motion to the faculty that we shift from our (then) numerical and oppressive grading system to a pass/fail/honors system. Not surprisingly, the motion failed for want of a second. Over a couple of decades of teaching, I encountered many students who more interested in the grade to be obtained from a course than in mastery the subject matter. Competition for grades and class rank led to joy and anticipation for some students but dejection and resignation for many more. Both those at the top of the class and those in the vast middle tend to place much too much emphasis on grades. I recall vividly one young man crying in my office. He received a very creditable grade in my evidence course, but it wasn’t quite an “A” and his class rank was not in the top 10%. He was going through a rough time with serious illness in his family so his law school performance was hardly the only thing on his mind, but he felt like a failure. I asked him what grade he got for honesty, what grade for good judgment, what grade for empathy and the ability to relate well to other people, etc. He looked at me as if I were nuts, of course, but I reminded him that there’s a lot more to becoming a good and successful lawyer than the grades one gets in law school. He is practicing today in one of Milwaukee’s well respected medium sized law firms. I can’t know but I suspect he is an excellent lawyer, every bit as capable as his classmates who received higher grades.
In my third year of teaching I engaged in a subversive initiation of anonymous grading. I was appointed to the faculty upon my graduation from the law school in 1970, i.e., in the middle of the Vietnam War. I had served in Vietnam in the Marines prior to starting law school in 1967 and by 1969 I was no longer subject to being called back to active duty as a member of the standby reserves. Most of my classmates on the other hand were subject to the draft and many were in fact drafted. Many others joined the active reserves in order to avoid the draft. When they finished their 2 years of active duty as draftees or 6 months of active duty as reservists, they returned to complete their legal studies. Thus when I started to teach (and test and grade) students, some of my former classmates were now my students. There was a fair amount of paranoia about grades in those days and the last thing I wanted to deal with was claims of favoritism towards friends and former classmates. I also didn’t want to deal with tension I might feel grading the bluebooks of students who were my friends so I devised an anonymous grading system and used it – without clearing it with the administration or the faculty. Why? Because I knew it would never be approved. Better to seek forgiveness than permission. As I expected, I had a number of very upset colleagues when my transgression was discovered.
I never thought there were academic freedom issues in connection with my unhappiness over the law school’s examination and grading policies in the 1970s, but there were rare occasions when such claims arose. One visiting professor awarded a large number of very low grades and refused to change them in the face of great student, faculty, and administrative displeasure. Academic freedom? When a student complained to a former dean that his passing grade in one course was too low, the dean had the protesting professor produce the exam and blue book to be reviewed by an associate dean. Academic freedom? A junior faculty member assigned a mid-semester book review to his class of 1Ls, causing a senior professor to complain that the assignment led many students in his class to plead “Not prepared” when called upon in the days before the assignment was due. Pressure was put on the junior faculty member to stop requiring midsemester book reviews in his class. Academic freedom? When grading norms were adopted by the administration with faculty concurrence, some faculty members claimed infringement of academic freedom. True?
I suspect that 99% of law professors go through their entire careers with no issue of academic freedom arising. This is probably a good thing, certainly better than living with the kind of the kind of intense campus turmoil created by Professor Rancourt. I vote with Stanley Fish on this issue.
Sunday, February 15, 2009
Cui bono?
Cui Bono?
Last month, Jessica Slavin’s miniblog Things Law School Doesn’t Teach (12/15/08) caught my eye. Professor Slavin’s blog linked to a public defenders’ blog in Connecticut which contained a list of “10 things I didn’t learn in law school,” a list seemingly assembled without a lot of thought, apparently just a bit of lighthearted fun.
The comments to the blog, on the other hand, were hardly lighthearted, especially the comments of Professor Papke and John Kindley.
Professor Papke wrote:
. . . I thought the list was cynical to a fault. Too many lawyers have a sad bitterness and mean anti-intellectualism about them. Maybe living in debt and working in the context of hierarchy and bureaucracy produces those attitudes. I wish somehow lawyers could remember law school as a demanding but enriching academic experience.
and
. . . We don’t want law school to be lawyer-training school. When we cave in to demands of that sort from the ABA and assorted study commission, we actually invite alienation among law students and lawyers. Legal education should appreciate the depth of the legal discourse and explore its rich complexities.. It should operate on a graduate-school level and graduate people truly learned in the law.
John Kindley countered:
The biggest flaw in [Professor Papke’s] philosophy is that law school is mandatory, if you want to practice law. The government of most all states will forcibly prevent you from doing it unless you’ve gone through those three years. It’s not too much to ask, therefore, that there be a close relationship between what is taught in those three years and preparing students for the actual practice of law. People can think deep thoughts about the law, and pay for the privilege, if they choose to do so, maybe as an elective . . . But I don’t feel like I or anyone else should be forced to pay for these high-falutin intellectual pursuits in order to practice a profession that for better or worse does not depend on such pursuits.
I was a bit surprised that Mr. Kindley’s comment attracted no responses since it was pregnant with so many issues about legal education. Should a law degree be required for the practice of law? All kinds of legal practice, or just some? Should three years of law school or the completion of 90 credits be required as a necessary condition for bar admission? Why not one or two years, coupled with a rigorous bar exam? Why not make law available as an undergraduate subject of study, as it is in many countries? Why require a baccalaureate necessitating four or more years of undergraduate study for admission to law school? Why not three years of such study, or two or none, so long as an applicant passes a validated and reliable qualifying entrance exam and otherwise satisfies admission officials that s/he is reasonably equipped for law studies? The history of the American legal profession has been in large measure a history of erecting ever higher barriers to entry into the profession and increasing the cost of entry has long been the principal tool of exclusion. What is the justification for the costly barriers to admission to the legal marketplace? These barriers have developed over a period of many years and have been with us now for so long that we tend to take them as ‘givens,’ but quaere whether some of them should be reexamined and perhaps modified or even torn down.
Mr. Kindley argues, if I understand him correctly, that those who wish to “think deep thoughts about the law, and pay for the privilege” should of course be able to do so, but what is the justification for bundling courses aimed at probing what Professor Papke calls “the depth of the legal discourse and . . . its rich complexities” with courses that Mr. Kindley identifies as “preparing students for the actual practice of law”? He takes dead aim at Professor Papke’s assertion that “[w]e don’t want law school to be lawyer-training school.” Quaere why not? With three years’ of tuition costs and average educational debt approaching $100,000 on top of opportunity costs, what is the justification for a curriculum that isn’t aimed at “preparing students for the actual practice of law”?
I should acknowledge that I think that Marquette has done an excellent job in creating a curriculum that offers great opportunities, clinical and otherwise, to prepare for ‘the actual practice of law’ as well as opportunities to probe “the depth of the legal discourse and . . . its rich complexities.” This is not to suggest however that our society would not benefit from a comprehensive and radical rethinking of the legal education industry. After all, before President Bush and the last Congress provided a bailout to the financial services industry in 2008, they had to bail out (in a manner of speaking) college and professional school graduates from what was for many of them a crushing burden of educational debt. (College Cost Reduction and Access Act of 2007.) In terms of legal education, would it not make sense to take a long hard look at methods of reducing costs? The tuition at MULS has increased by a factor of 26.95 since I matriculated in 1967. The CPI over the same period increased by a factor of 6.36. Thus, tuition increases more than quadrupled increases in the CPI. Is the educational experience today richer than it was in 1967? Without question. To acknowledge this truth, however, doesn’t address the issue of whether students who would prefer a less rich and less costly but nonetheless adequate and satisfactory educational experience ought to have opportunities to pursue it.
Lastly, Mr. Kindley argues, pace Professor Papke, that the legal profession “for better or worse does not depend on (high-falutin intellectual) pursuits.” Professor Papke may (or may not) consider Mr. Kindley’s comments to demonstrate the “sad bitterness and mean anti-intellectualism” to which Professor Papke referred in his first comment to Professor Slavin’s blog. For my part, the pointed exchange between the two gentlemen reminded me of the following:
Since . . . it has been my intention to write something of use to the understanding reader it has seemed wiser to me to follow the real truth of the matter rather than what we imagine it to be. Imagination has created many principalities and republics that have never been seen or known to have any real existence; for how we live is so far different from how we ought to live that he who studies what ought to be done rather what is done will learn the way to his downfall rather than to his preservation.
Niccolo Machiavelli, THE PRINCE, ch. XV.
and
[L]aw was superb as a code. And the more perfect and logical a code was, the more magnificent it was. But this was at the cost of increased artificiality, rendering it less capable of existing in reality. Hence the opportunity to study and reflect on law offered the greatest satisfaction while the requirement to implement it was the saddest or most painful fate that could befall one. The practice of law led either to cynicism or madness. We could see examples of the former all around us and, as for the latter, suffice it to recall Kafka, who, though few realized it, was a Prague lawyers.
Ivan Klima, JUDGE ON TRIAL A. G. Brain trans., 1993
Last month, Jessica Slavin’s miniblog Things Law School Doesn’t Teach (12/15/08) caught my eye. Professor Slavin’s blog linked to a public defenders’ blog in Connecticut which contained a list of “10 things I didn’t learn in law school,” a list seemingly assembled without a lot of thought, apparently just a bit of lighthearted fun.
The comments to the blog, on the other hand, were hardly lighthearted, especially the comments of Professor Papke and John Kindley.
Professor Papke wrote:
. . . I thought the list was cynical to a fault. Too many lawyers have a sad bitterness and mean anti-intellectualism about them. Maybe living in debt and working in the context of hierarchy and bureaucracy produces those attitudes. I wish somehow lawyers could remember law school as a demanding but enriching academic experience.
and
. . . We don’t want law school to be lawyer-training school. When we cave in to demands of that sort from the ABA and assorted study commission, we actually invite alienation among law students and lawyers. Legal education should appreciate the depth of the legal discourse and explore its rich complexities.. It should operate on a graduate-school level and graduate people truly learned in the law.
John Kindley countered:
The biggest flaw in [Professor Papke’s] philosophy is that law school is mandatory, if you want to practice law. The government of most all states will forcibly prevent you from doing it unless you’ve gone through those three years. It’s not too much to ask, therefore, that there be a close relationship between what is taught in those three years and preparing students for the actual practice of law. People can think deep thoughts about the law, and pay for the privilege, if they choose to do so, maybe as an elective . . . But I don’t feel like I or anyone else should be forced to pay for these high-falutin intellectual pursuits in order to practice a profession that for better or worse does not depend on such pursuits.
I was a bit surprised that Mr. Kindley’s comment attracted no responses since it was pregnant with so many issues about legal education. Should a law degree be required for the practice of law? All kinds of legal practice, or just some? Should three years of law school or the completion of 90 credits be required as a necessary condition for bar admission? Why not one or two years, coupled with a rigorous bar exam? Why not make law available as an undergraduate subject of study, as it is in many countries? Why require a baccalaureate necessitating four or more years of undergraduate study for admission to law school? Why not three years of such study, or two or none, so long as an applicant passes a validated and reliable qualifying entrance exam and otherwise satisfies admission officials that s/he is reasonably equipped for law studies? The history of the American legal profession has been in large measure a history of erecting ever higher barriers to entry into the profession and increasing the cost of entry has long been the principal tool of exclusion. What is the justification for the costly barriers to admission to the legal marketplace? These barriers have developed over a period of many years and have been with us now for so long that we tend to take them as ‘givens,’ but quaere whether some of them should be reexamined and perhaps modified or even torn down.
Mr. Kindley argues, if I understand him correctly, that those who wish to “think deep thoughts about the law, and pay for the privilege” should of course be able to do so, but what is the justification for bundling courses aimed at probing what Professor Papke calls “the depth of the legal discourse and . . . its rich complexities” with courses that Mr. Kindley identifies as “preparing students for the actual practice of law”? He takes dead aim at Professor Papke’s assertion that “[w]e don’t want law school to be lawyer-training school.” Quaere why not? With three years’ of tuition costs and average educational debt approaching $100,000 on top of opportunity costs, what is the justification for a curriculum that isn’t aimed at “preparing students for the actual practice of law”?
I should acknowledge that I think that Marquette has done an excellent job in creating a curriculum that offers great opportunities, clinical and otherwise, to prepare for ‘the actual practice of law’ as well as opportunities to probe “the depth of the legal discourse and . . . its rich complexities.” This is not to suggest however that our society would not benefit from a comprehensive and radical rethinking of the legal education industry. After all, before President Bush and the last Congress provided a bailout to the financial services industry in 2008, they had to bail out (in a manner of speaking) college and professional school graduates from what was for many of them a crushing burden of educational debt. (College Cost Reduction and Access Act of 2007.) In terms of legal education, would it not make sense to take a long hard look at methods of reducing costs? The tuition at MULS has increased by a factor of 26.95 since I matriculated in 1967. The CPI over the same period increased by a factor of 6.36. Thus, tuition increases more than quadrupled increases in the CPI. Is the educational experience today richer than it was in 1967? Without question. To acknowledge this truth, however, doesn’t address the issue of whether students who would prefer a less rich and less costly but nonetheless adequate and satisfactory educational experience ought to have opportunities to pursue it.
Lastly, Mr. Kindley argues, pace Professor Papke, that the legal profession “for better or worse does not depend on (high-falutin intellectual) pursuits.” Professor Papke may (or may not) consider Mr. Kindley’s comments to demonstrate the “sad bitterness and mean anti-intellectualism” to which Professor Papke referred in his first comment to Professor Slavin’s blog. For my part, the pointed exchange between the two gentlemen reminded me of the following:
Since . . . it has been my intention to write something of use to the understanding reader it has seemed wiser to me to follow the real truth of the matter rather than what we imagine it to be. Imagination has created many principalities and republics that have never been seen or known to have any real existence; for how we live is so far different from how we ought to live that he who studies what ought to be done rather what is done will learn the way to his downfall rather than to his preservation.
Niccolo Machiavelli, THE PRINCE, ch. XV.
and
[L]aw was superb as a code. And the more perfect and logical a code was, the more magnificent it was. But this was at the cost of increased artificiality, rendering it less capable of existing in reality. Hence the opportunity to study and reflect on law offered the greatest satisfaction while the requirement to implement it was the saddest or most painful fate that could befall one. The practice of law led either to cynicism or madness. We could see examples of the former all around us and, as for the latter, suffice it to recall Kafka, who, though few realized it, was a Prague lawyers.
Ivan Klima, JUDGE ON TRIAL A. G. Brain trans., 1993
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